Richard Davis: Judge Shelby was wrong, but gay marriage momentum is a reality

Today’s column will please neither the advocates for same-sex marriage nor its opponents. It isn’t meant to. Rather, it is an attempt to start the New Year with a way forward for Utah on this issue.

First, U.S. District Judge Robert Shelby was wrong when he declared there was a constitutional right for same-sex couples to marry. His higher court, the U.S. Supreme Court, has not established such a right. In fact, the court pointedly declined to do so when given the opportunity in two cases decided just last June. In the case, of Hollingsworth v. Perry (the Proposition 8 case), it remanded the case back to the lower district court because the plaintiffs (same-sex marriage opponents) lacked standing, which means the legal right to bring the case. It could have decided that California voters had no right to ban same-sex marriage. But it didn’t. Also, in United States v. Windsor, the U.S. Supreme Court overturned the Defense of Marriage Act on the basis that states can define marriage.

Judge Shelby was keenly aware of this. Yet, with an astounding sense of activism, he moved beyond where the Supreme Court had decided to go and then refused to postpone the impact of his decision to allow the appeals process to work its will before his decision took effect. Gay marriage proponents were heartened. But they should be as concerned about the process as they are happy with the outcome.

One problem is the practice of a federal district judge setting and applying social policy. For example, if a Utah federal judge ruled that there was a constitutional right to life for all unborn children (and that abortion clinics must close) and then refused to stay the decision, would that decision then be heralded by many who support Judge Shelby’s same sex marriage decision, even if it were endorsed by two appellate court judges? In a representative democracy such as ours, the process of deciding broad public policy and then determining its implementation is intentionally not vested in a few hands.

The other problem is the upsetting of the finely tuned compromise the Supreme Court achieved last summer when it allowed states to make separate same-sex marriage policies. That meant the political processes in various states could work their will, which already has resulted in some states approving same-sex marriage through public debate and legislative and executive action. Clearly, Judge Shelby circumvented that whole process for Utah. That hurts the effort to build support for gay rights in Utah.

Attorney General Sean Reyes has a political, legal, and moral obligation to carry this suit to the Supreme Court. The last evidence he has of the voters’ will on this issue is the passage of Amendment 3 in 2004. Beyond that, the failure of anyone who supports gay marriage from winning statewide or federal office in Utah is a measure of the continued opposition to the practice. And a 2012 BYU survey found that, even though support for gay marriage in Utah has increased recently, it was still only at 28 percent.

On the other hand, Judge Shelby is right in the sense that there is momentum for gay marriage. indeed one could argue it may already be here to stay in Utah. The claim could be made that even if his decision is overturned and gay marriage is once again banned, that it would be improper to void the marriages that were performed under his court order. And it is also quite possible his decision will stand and same-sex marriage will be permanent. What we do know is that same-sex couples who have married in other jurisdictions have made Utah their home.

Given these options, perhaps it is time for Utahns to think about adjusting to a new reality of same-sex marriage. That would mean accepting those who are married legally as equal members of the community in terms of marital rights. It would mean acknowledging that while marriage between a man and a woman, by far, will remain the predominant form of marriage, there are exceptions for those who have same-sex attraction. Perhaps it also means rethinking what heterosexuals consider about marriage. In an age when too many people discount marriage through simply living together or opt too hastily for divorce, perhaps we should be heartened to see so many people embracing the institution of marriage.

Richard Davis is a professor of political science at Brigham Young University. His opinions do not necessarily reflect those of BYU.